18. Summary of Part D Compensation

  1. The Applicant has proposed a suite of compensatory measures which has been selected through a rigorous iterative process involving careful consideration and testing of options, stakeholder consultation and refinement. There is sufficient evidence to support the rationale for the final selection, which is as follows:
  • Management of the SA4 sandeel fishery – full closure or ecosystem management of SA4 sandeel fishery
  • Rat eradication and biosecurity measures at Handa island
  • Dunbar castle wardening role
    1. Each of these compensatory measures should not be considered in isolation, but rather together as a ‘suite’ as the measures are interactive and synergistic.
    2. Management of sandeel fishery SA4 is considered the principal (highest benefit) measure and tangible benefits will be realised immediately following its implementation and will remain constant while other measures mature.
    3. The suite of compensatory measures will provide significant additional kittiwakes, guillemots, razorbills and puffins into the UK population – with total numbers far in excess of those required to offset the impacts from the Proposed Development. The impacts presented have been calculated using an approach that the Applicant considers to be over-precautionary, and the total anticipated increases in seabird numbers (i.e. the benefits from the compensation) have been presented with a degree of conservatism. Together, this suggest that the actual realised numbers are likely to be higher.
    4. These measures are substantial and provide a comprehensive solution that will maintain and enhance the national site network as well as provide high compensation ratios which deliver significant deliver a compensation surplus which is likely to benefit future offshore wind farm proposals in Scottish waters.

19. Derogation Case Conclusions

  1. This derogation case has provided an overview of the Project and the unique opportunity that it represents to deliver timely solutions to both the climate and the biodiversity crisis. The Project objectives are clear and derived from Scottish and UK policy and can only be met by a project of this scale in this location. The need for the Project has been set out in comprehensive detail in the statement of need report.
  2. An overview of the relevant legislation has provided an explanation of the three tests that a derogation case must satisfy to receive consent from Scottish Ministers.
  • There are no alternative solutions to the proposed project
  • The Project should be carried out for imperative reasons of overriding public interest
  • Necessary compensation measures are taken to ensure the overall coherence of the national site network is protected
    1. Reasons and evidence have been provided to demonstrate, that there are no alternatives to the Project and that it should be carried for IROPI. Based on extensive consultation and research compensation measures have been developed that are feasible, additional, can be secured and will deliver compensation to offset the impact of the Proposed Development and ensure that the overall coherence of the national site network is protected. The measures have been designed to deliver high compensation ratios to cover even the most precautionary assessment of AEOI.
    2. Scottish Ministers can be confident that this derogation case provides the required level of evidence and information to allow the Proposed Development to be consented under the HRA Derogation Provisions.

20. References

20.1. Literature

BEIS (2017). The Clean Growth Strategy. HMG, 2017 (Corrected 2018).

BEIS (2019) Offshore wind Sector Deal. BEIS Policy Paper.

BEIS (2020a) Decision Letter for Hornsea Three. 31 December 2020. Available at: https://infrastructure.planninginspectorate.gov.uk/wp-content/ipc/uploads/projects/EN010080/EN010080-003265-EN010080%20Hornsea%20Three%20-%20Secretary%20of%20State%20Decision%20Letter.pdf Accessed on: 17 January 2022

BEIS (2020b). Hornsea Project Three Habitats Regulation Assessment and Marine Conservation Zone Assessment.   December 2020. Available at https://infrastructure.planninginspectorate.gov.uk/wp-content/ipc/uploads/projects/EN010080/EN010080-003267-EN010080 Hornsea Three - Habitats Regulations Assessment.pdf

BEIS (2021a). Decision Letter for Norfolk Boreas. 20 December 2021. Available at: https://infrastructure.planninginspectorate.gov.uk/wp-content/ipc/uploads/projects/EN010087/EN010087-002917-NORB-Boreas-Decision-Letter.pdf Accessed on: 17 January 2022

BEIS (2021b). Draft Overarching National Policy Statement for Energy (EN-1)

BEIS (2021c). Draft National Policy Statement for Renewable Energy Infrastructure (EN‑3)

BEIS (2021d). Draft Overarching National Policy Statement for Energy (EN‑1)

BEIS (2021e). Draft National Policy Statement for Electricity Networks Infrastructure (EN-5). (EN‑5)

BEIS (2022a). Decision Letter for Norfolk Vanguard. 11 February 2022. Available at: https://infrastructure.planninginspectorate.gov.uk/wp-content/ipc/uploads/projects/EN010079/EN010079-004458-NORV-SoS-decision-letter.pdf Accessed on: 17 February 2022

BEIS (2022b). Decision Letter for EA ONE North. 31 March 2022.

BEIS (2022c). Decision Letter for EA 2. 31 March 2022.

BTO 2014. Collision avoidance rates between birds and offshore.

Calado, J.G., Ramos, J.A., Almeida, A., Oliveira, N. and Paiva, V.H. (2020). Seabird-fishery interactions and bycatch at multiple gears in the Atlantic Iberian coast. Ocean and Coastal Management. Available at: https://doi.org/10.1016/j.ocecoaman.2020.105306

Calado, J.G., Ramos, J.A., Almeida, A., Oliveira, N. and Paiva, V.H. (2020). Seabird-fishery interactions and bycatch at multiple gears in the Atlantic Iberian coast. Ocean and Coastal Management. Available at: https://doi.org/10.1016/j.ocecoaman.2020.105306

Caravaggi, A., Cuthbert, R.J., Ryan, P.G., Cooper, J. & Bond, A.L. (2018). The impacts of introduced House Mice on the breeding success of nesting seabird on Gough Island. Ibis. doi.10.1111/ibi.12664

Carroll, M.J., Bolton, M., Owen, E., Anderson, G.Q.A., Mackley, E.K., Dunn, E.K. & Furness, R.W. (2017). Kittiwake breeding success in the southern North Sea correlates with prior sandeel fishing mortality. Aquatic Conservation: Marine & Freshwater Ecosystems 27: 1164–1175.

CCC (2019). Net Zero Technical Report (CCS Net Zero report).

CCC (2020). The Sixth Carbon Budget: The UK’s path to Net Zero.

CCC (2021). CCC Progress in Reducing Emissions.  2021 Report to Parliament. June 2021.

CCC (undated). Advice on reducing the UK’s emissions. Available at:   https://www.theccc.org.uk/about/our-expertise/advice-on-reducing-the-uks-emissions/. Accessed on 14 April 2022

Cleasby, Ian R. Owen, E., Wilson, L., Bolton, M. , 2018  Combining habitat modelling and hotspot analysis to reveal the location of high density seabird areas across the UK: Technical Report RSPB Research Report 63 September 2018

Daunt, F., Wanless, S., Greenstreet, S. P. R., Jensen, H., Hamer, K. C., and Harris, M. P. (2008). The impact of the sandeel fishery closure on seabird food consumption, distribution, and productivity in the northwestern North Sea. Canadian Journal of Fisheries and Aquatic Sciences, 65, 362-381.

Daunt F., Wanless, S., Greensheet, H. Jensen., Hamer, K.C, Harris, M.P (2019). The Impact of the Sandeel fishery closure on seabird food consumption, distribution and productivity in the northwest North Sea.

Davies J.G., Humphreys, E.M. and Pearce-Higgins, J.W. (2021). Projected future vulnerability of seabirds within the INTERREG VA area to climate change. BTO report to AFBI and Marine Scotland.

DECC (2011a). Overarching National Policy Statement for Energy (EN-1). Presented to Parliament pursuant to Section 5(9) of the Planning Act 2008.

DECC (2011b). National Policy Statement for Renewable Energy Infrastructure (EN-3). Presented to Parliament pursuant to Section 5(9) of the Planning Act 2008.

DECC (2011c). National Policy Statement for Electricity Networks Infrastructure (EN-5). Presented to Parliament pursuant to Section 5(9) of the Planning Act 2008.

Defra (2012). Habitats Directive: guidance on the application of article 6(4). published by Defra in December 2012.

Defra (2021a). Policy paper ‘Changes to the Habitats Regulations 2017’ Published 1 January 2021. Accessed April 2021. Available at: https://www.gov.uk/government/publications/changes-to-the-habitats-regulations-2017/changes-to-the-habitats-regulations-2017

Defra (2021b). Best practice guidance for developing compensatory measures in relation to Marine Protected Areas.  July 2021.  Version for consultation.

DTA (2015) Habitats regulations appraisal of plans: Guidance for plan-making bodies in Scotland. Version 3.0, January 2015. Available at: https://www.nature.scot/sites/default/files/2019-07/Habitats Regulations Appraisal of Plans - plan-making bodies in Scotland - Jan 2015.pdf

DTA Ecology (2021a: in draft). Policy guidance document on demonstrating the absence of Alternative Solutions and imperative reasons for overriding public interest under the Habitats Regulations for Marine Scotland. Draft report 31 November 2021, not out to general consultation. Doc. Ref. 1116 AS and IROPI Guidance.

DTA Ecology (2021b). Framework to evaluate ornithological compensatory measures for offshore wind process guidance note for developers.  Doc. Ref. 1107 Marine Scotland CM framework              Date: November 2021

DTA Ecology (2021c) The Habitats Regulations Assessment Handbook. 2021 edition UK, available through membership to DTA. Available at: www.dtapublications.co.uk

EC (2010).  Wind energy developments and Natura 2000

EC (2018). Managing Natura 2000 Sites (“MN 2000”): The provisions of Article 6 of the Habitats Directive 92/43/EEC. Published by the EC in 2000, as updated in November 2018.

EC (2020, revised 2021). Guidance document on wind energy developments and EU nature legislation

EC (revised 2021). Methodological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC and Annex (the EC Methodological Guidance);

Energy and Utility Skills (2018). Skills and Labour Requirements of the UK Offshore Wind Industry 2018 to 2032. Available online: https://aura-innovation.co.uk/wp-content/uploads/2020/04/Aura-EU-Skills-UK-Offshore-Wind-Skills-Study-Full-Report-October-2018.pdf

Frederiksen, M., Edwards, M., Richardson, A. J., Halliday, N. C., and Wanless, S. (2006). From plankton to top predators: bottom-up control of a marine food web across four trophic levels. Journal of Animal Ecology, 75, 1259-1268.

Frederiksen, M., Jensen, H., Duant, F., Mavor, R.A. and Wanless, S. (2008). Differential effects of a local industrial sand lance fishery on seabird breeding performance. Ecological Applications, 18, 701–710.

Furness, R.W. and Tasker, M.L. (2000). Seabird-fishery interactions: quantifying the sensitivity of seabirds to reductions in sandeel abundance, and identification of key areas for sensitive seabirds in the North Sea. Marine Ecology Progress Series, 202, 253–264.

Furness, R.W., MacArthur, D., Trinder, M. & MacArthur, K. (2013). Evidence review to support the identification of potential conservation measures for selected species of seabirds. Report to Defra. 158 pp.

Greenstreet, S., Fraser, H., Armstrong, E. and Gibb, I. (2010). Monitoring the consequences of the northwestern North Sea sandeel fishery closure. Scottish Marine and Freshwater Science, 1, 1–31.

HM Government (2022). British energy security strategy: Policy Paper. Updated 7 April 2022.

HM Government (2021a). Net Zero Strategy: Build Back Greener.

HM Government (2020b). Energy White Paper: Powering our Net Zero Future.

IEA (2020). Reaching international energy goals. IEA News, 2020.

ICES (2017). OSPAR request on the production of spatial layers of fishing intensity/pressure. ICES Technical Service sr.2017.17 (Version 2: 22 January 2019). Available at: https://doi.org/10.17895/ices.advice.4683

IPCC (2021). Sixth Assessment Report.  Headline Statements from the Summary for Policymakers. IPCC 9th August 2021.

JNCC (2020). SMP Report 1986–2019 | JNCC - Adviser to Government on Nature Conservation

Lindegren, M., van Deurs, M., MacKenzie, B.R., Clausen, L.W., Christensen, A. and Rindorf, A. (2018). Productivity and recovery of forage fish under climate change and fishing: North Sea sandeel as a case study. Fisheries Oceanography, 27, 212-221.

Marine Scotland (2021). Sectoral Marine Plan for Offshore Wind for Innovation and Targeted Oil and Gas Decarbonisation (INTOG) Planning Specification and Context Report

Mason, L.R., Green, R.E., Hirons, G.J.M., Skinner, A.M.J., Peault, S.C., Upcott, E.V., Wells, E., Wilding, D.J., and Smart, J. (2021). Experimental diversionary feeding of red kites Milvus milvus reduces chick predation and enhances breeding productivity of northern lapwings Vanellus vanellus. Journal for Nature Conservation, 64.

Mitchell, P.I., Newton, S.F., Ratcliffe, N. and Dunn, T.E. (2004). Seabird Populations of Britain and Ireland. T & AD Poyser, London.

Murawski, S.A. (2010). Rebuilding depleted fish stocks: the good, the bad, and, mostly, the ugly. ICES Journal of Marine Science 67: 1830-1840.

National Engineering Policy Centre (2021). Rapid "low regrets" decision making for net zero policy.

National Grid (2021a). Future Energy Scenarios. National Grid.

National Grid (2021b). TEC Register.

National Infrastructure Commission (NIC) (2020). Renewables, recovery, and reaching Net Zero.

O’Hanlon, N., Bond, A.L., Masden, E., Lavers, J.L. & James, N.A. (2021). Measuring nest incorporation of anthropogenic debris by seabird: An opportunistic approach increases geographic scope and reduces costs. Marine Pollution Bulletin 171. Available at: https://doi.org/10.1016/j.marpolbul.2021.112706

Oliveira, N., Henriques, A., Miodonski, J., Pereira, J., Marujo, D., Almeida, A., Barros, N., Andrade, J., Marcalo, A., Santos, J., Oliveira, I.B., Ferreira, M., Araujo, H., Monteiro, S., Vingada, J. and Ramirez, I. (2015). Seabird bycatch in Portuguese mainland coastal fisheries: An assessment through on-board observations and fishermen interviews. Global Ecology and Conservation 3: 51-61.

Oro, D. and Furness, R.W. (2002). Influences of food availability and predation on survival of kittiwakes. Ecology, 83, 2516-2528.

Orsted (2021). Hornsea Project Four, Habitats Regulations Assessment Volume B, Chapter 5: Without Prejudice Derogation Case. PINS Document Reference: B2.5. Available at: https://infrastructure.planninginspectorate.gov.uk/wp-content/ipc/uploads/projects/EN010098/EN010098-000499-B2.5%20RP%20Volume%20B2%20Chapter%205%20Without%20Prejudice%20Derogation%20Case.pdf.

OSPAR Commission (2009). Background document for black-legged kittiwakes Rissa tridactyla tridactyla. OSPAR Biodiversity Series.

Pichegru, L., Ryan, P.G., van Eeden, R., Reid, T., Gremillet, D. and Wanless, R. (2012). Industrial fishing, no-take zones and endangered penguins. Biological Conservation, 156, 117-125.

Ratcliffe, N., Mitchell, I., Varnham, K., Verboven, N., & Higson, P. (2009). How to prioritise rat management for the benefit of petrels: a case study of the UK, Channel Islands and Isle of Man. Ibis 151: 699-708.

Régnier, T., Gibb, F.M. & Wright, P.J. (2019). Understanding temperature effects on recruitment in the context of trophic mismatch. Sci Rep 9, 15179 (2019) doi:10.1038/s41598-019-51296-5.

Renewable UK (2019). Onshore Wind. The UK’s Next Generation.

Royal Haskoning (2009). Scottish Territorial Waters Offshore Wind Farms – East Coast, Discussion Document – Cumulative Effects. Available online: https://nngoffshorewind.com/files/offshore-environmental-statement/Appendix-6.2---FTOWDG-Discussion-Document-1.pdf.

Sadykova, D. Scott, B. E., De Dominicis, M., Wakelin, S. L., Wolf, J. and Sadykov, A.  (XXXX). Ecological costs of climate change on marine predator–prey population distributions by 2050.

Scottish First Minister (2021). Climate change emergency: representation from Scottish to UK Government. Letter from the First Minister to the Prime Minister.

Scottish Government (2013) Planning Circular 6 2013. Development Planning.

Scottish Government (2014). Scottish Planning Policy. Published June 2014.

Scottish Government (2015). Scotland’s National Marine Plan: A Single Framework for Managing Our Seas. Published March 2015, ISBN: 978-1-78544-214-8.

Scottish Government (2017). Scottish Energy Strategy: The future of energy in Scotland.

Scottish Government (2019). Monitoring the Consequences of the Northwestern North Sea Sandeel Fishery Closure.

Scottish Government (2020a). Policy paper ‘EU Exit: The Habitats Regulations in Scotland’. Published 23 December 2020. Accessed October 2021. Available at https://www.gov.scot/publications/eu-exit-habitats-regulations-scotland-2/documents/

Scottish Government (2020b). Sectoral Marine Plan for Offshore Wind Energy.

Scottish Government (2020c). Offshore Wind Policy Statement.

Scottish Renewables (2018). An industry view of the Draft Sectoral Marine Plan for Offshore Wind.

Sea Mammal Research Unit (UK), Fisheries Research Services (UK), the Danish Institute for Fisheries Research, the Institute for Terrestrial Ecology (UK), and the University of Newcastle-upon-Tyne (UK) (2019). ELIFONTS project (Effect of Large-scale Industrial Fisheries On Non Target Species) multi-disciplinary collaboration.

Searle, K.R., Regan, C.E., Perrow, M.R., Butler, A., Rindorf, A., Harris, M.P., Newell, M.A., Wanless, S., & Daunt, F. (2022, in prep). Effects of a fishery closure and prey abundance on seabird diet and breeding success: implications for strategic fisheries management and seabird conservation. Submitted to Biological Conservation.

SNH (2010). SNH Guidance ‘Natura sites and the Habitats Regulations. How to consider proposals affecting SACs and SPAs in Scotland. The essential quick guide’.

Sutton, L., & Loram, S. (2021). Diet specialization in an insular population of coastal Peregrine Falcons. 10.1101/2021.09.07.459223.

SSER (2020a). Berwick Bank Wind Farm Offshore Scoping Report. Submitted to MS-LOT,

SSER (2021). Berwick Bank Wind Farm Offshore Scoping Report. Second submission, submitted to PINS.

TCE (2012). Systematic process of analysis and assessment of spatial data included in their Marine Resource Geographical Information Systems (GIS) System (MaRS)

Thomas, S., & Varnham, S. (2016). Island Biosecurity Manual. Seabird Island Restoration Project, RSPB. RSPB, Sandy, Bedfordshire.

Thomas, S., Brown, A., Bullock, D., Lock, L. Luxmoore, R., Roy, S., Stanbury, A., & Varnham, K. (2017). Island restoration in the UK – past, present and future. British Wildlife 28:4, p.231-243.

Wanless, S., Harris, M.P., Newell, M.A., Speakman, J.R. & Daunt, F. (2018). Community-wide decline in the occurrence of lesser sandeels Ammodytes marinus in seabird chick diets at a North Sea colony. Marine Ecology Progress Series 600: 193–206.  

UNFCC (2021) – Glasgow Climate Pact

20.2. Websites

Catapult Offshore Renewable Energy (undated). UK offshore wind history. Available at: https://guidetoanoffshorewindfarm.com/offshore-wind-history. Accessed on: 17 January 2022.

Cefas (2020). 130 years of measuring seawater temperature. Available at:  https://www.cefas.co.uk/impact/case-studies/130-years-of-measuring-seawater-temperature/. Accessed on 17 January 2022.

CES (2022). ScotWind offshore wind leasing delivers major boost to Scotland’s net zero aspirations. Available at: https://www.crownestatescotland.com/news/scotwind-offshore-wind-leasing-delivers-major-boost-to-scotlands-net-zero-aspirations Accessed on: 17 January 2022

HM Government (2020a). PM outlines his Ten Point Plan for a Green Industrial Revolution for 250,000 jobs. Available at: https://www.gov.uk/government/news/pm-outlines-his-ten-point-plan-for-a-green-industrial-revolution-for-250000-jobs Accessed on: 17 January 2022.

National Grid (2022). Transmission Works Report. Available at:  https://www.nationalgrideso.com/industry-information/connections/reports-and-registers Accessed on 23 March 2022

Renewable Energy Magazine (2010). Extension to Rounds 1 and 2 of UK offshore wind programme to power 1.4 million UK homes. Available at: https://www.renewableenergymagazine.com/wind/extension-to-rounds-1-and-2-of. Accessed on: 17 January 2022.

RSPB (2017). Kittiwake joins the red list of birds facing risk of global extinction. Available at: https://www.rspb.org.uk/about-the-rspb/about-us/media-centre/press-releases/kittiwakeredlist/. Accessed on 17 January 2022.

Smart, Jennifer and Amar, Arjun (2018) Diversionary feeding as a means of reducing raptor predation at seabird breeding colonies. Journal for Nature Conservation, 46. pp. 48-55. ISSN 1617-1381

TCE ([Undated]a). Playing our part in the growth of UK offshore wind. Available at: https://www.thecrownestate.co.uk/media/3346/4043-tce-role-in-uk-offshore-wind-final.pdf. Accessed on: 17 January 2022.

TCE ([Undated]b). Offshore Wind Extension Projects. Undated. Available at: https://www.thecrownestate.co.uk/en-gb/what-we-do/on-the-seabed/energy/offshore-wind-extension-projects-2017/. Accessed on: 02 February 2022.

TCE ([Undated]c). Offshore Wind Leasing Round 4. Undated. Available at: https://www.thecrownestate.co.uk/round-4/. Accessed on: 02 February 2022.

TCE ([Undated]d). Round 4: Document Library, Documents and resources for Offshore Wind Leasing Round 4. Available at: https://www.thecrownestate.co.uk/en-gb/what-we-do/on-the-seabed/offshore-wind-leasing-round-4/round-4-document-library/. Accessed on: 06 January 2022.

TCE (2021). Floating Offshore Wind. Available at: https://www.thecrownestate.co.uk/en-gb/what-we-do/on-the-seabed/energy/floating-offshore-wind/. Accessed on: 02 February 2022.

TCE (2022). Project Listings. Available at: https://www.thecrownestate.co.uk/media/3954/offshore-wind-project-listing.pdf. Accessed on 02 February 2022.

TCE (2022b).  TCE Press Release data 19 July 2022.Government approves 8GW of offshore wind in major milestone for renewable energy https://www.thecrownestate.co.uk/en-gb/media-and-insights/news/2022-government-approves-8gw-of-offshore-wind-in-major-milestone-for-renewable-energy/  Accessed 21 July 2022.

UN Climate Change (UNCC) (2021a). COP26 Reaches Consensus on Key Actions to Address Climate Change. Available at: https://unfccc.int/news/cop26-reaches-consensus-on-key-actions-to-address-climate-change. Accessed on 10 January 2022.

UN Climate Change (UNCC) (2021b). COP26 OUTCOMES. Available at: https://ukcop26.org/the-conference/cop26-outcomes/. Accessed on: 17 January 2022.

20.3. Legislation

Scotland

 

Marine (Scotland) Act 2010

Marine (Scotland) Act. 2010. Available at: https://www.legislation.gov.uk/asp/2010/5/introduction

Scotland Climate Change (Emissions Reduction Targets) Act 2019

Climate Change (Emissions Reduction Targets) (Scotland) Act. 2019. Available at: https://www.legislation.gov.uk/asp/2019/15/2019-11-01?view=extent

Scotland Climate Change Act 2009

Climate Change (Scotland) Act. 2009. Available at: https://www.legislation.gov.uk/asp/2009/12/contents

The EU Exit Regulations

The Conservation (Natural Habitats, &c.) (EU Exit) (Scotland) (Amendment) Regulations 2019. Available at: https://www.legislation.gov.uk/sdsi/2019/9780111041062

 

 

UK

 

Climate Change Act 2008

Climate Change Act 2008 (as amended). Available at: https://www.legislation.gov.uk/ukpga/2008/27/contents https://www.legislation.gov.uk/ukpga/2008/27/contents

Electricity Act 1989

Electricity Act. 1989. Available at: https://www.legislation.gov.uk/ukpga/1989/29/contents

Energy Act 2004

Energy Act. 2004. Available at: https://www.legislation.gov.uk/ukpga/2004/20/introduction

European Union (Withdrawal) Act

European Union (Withdrawal) Act. 2018 (as amended). Available at: https://www.legislation.gov.uk/ukpga/2018/16/contents/enacted

Habitats Regulations

The Conservation (Natural Habitats, & c.) Regulations. 1994 (as amended). Available at: https://www.legislation.gov.uk/uksi/1994/2716/introduction/made

Habitats Regulations

The Conservation of Habitats and Species Regulations. 2017. Available at: https://www.legislation.gov.uk/uksi/2017/1012/contents/made

Marine and Coastal Access Act 2009

Marine and Coastal Access Act. 2009. Available at: https://www.legislation.gov.uk/ukpga/2009/23/introduction

Offshore Habitats Regulations

Offshore Marine Conservation (Natural Habitats &c) Regulations 2007. Available at: https://www.legislation.gov.uk/uksi/2007/1842/contents/made

Offshore Habitats Regulations

The  Conservation of Offshore Marine Habitats and Species Regulations 2017. Available at: https://www.legislation.gov.uk/uksi/2017/1013/contents/made

Offshore Petroleum Regulations

The Offshore Petroleum Activities (Conservation of Habitats) Regulations. 2001. Available at: https://www.legislation.gov.uk/uksi/2001/1754/introduction/made

The Wildlife and Countryside Act 1981

Wildlife and Countryside Act. 1981. Available at: https://www.legislation.gov.uk/ukpga/1981/69

 

 

EUROPE / International

COP26

26th UN Climate Change Conference of the Parties (COP26). Available at: https://ukcop26.org/

Habitats Directive

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206/7 22.7.1992). Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31992L0043

(EU) HRA Derogation Provisions

Habitats Directive Article 6(4). Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31992L0043

Wild Birds Directive

Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ L 20/7 26.1.2010) (the Birds Directive). Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32009L0147


 

Appendix 1: Consultation Log

  1. This appendix summarises all consultation and engagement undertaken to date in relation to the Derogation Case for The Proposed Development. Table 1 provides an overview of all meetings held, the purpose of the meeting and attendees.
  2. Consultation is recognised by the Applicant as being a key feature of the development of the compensatory measures, which continues throughout the lifecycle of these measures, from their initial conceptual stages through to implementation and monitoring
  3. The Applicant has undertaken extensive and thorough consultation and engagement specifically in relation to the Derogation Case. As outlined in Table 1 a wide group of key stakeholders has been engaged with including statutory stakeholders, those with an interest in seabirds and fisheries as well as local stakeholders who the Applicant will collaborate with as the compensatory measures are implemented and monitored. The Applicant is committed to continuous and further dialogue with all interested parties through the further development and refinement of the compensatory measures towards their implementation. The Applicant has considered all representations made in meetings, feedback from discussions and responses from stakeholders as appropriate throughout the preparation of the suite of documents supporting the Derogation Case. 
  4. As outlined within Table A1, workshops were held with key stakeholders specifically in relation to the compensatory measures proposed by the Applicant. In these workshops there were detailed discussions regarding the proposed compensatory measures and advice was requested of stakeholders and subsequently responded to in the following workshops. This collaborative approach to consultation workshops allowed for stakeholder feedback to be considered as appropriate throughout the development of the compensatory measures. Specific feedback from stakeholders regarding the workshop processes included:
  • “We value and commend the process you have undertaken to date and in particular note how helpful and focused the meetings and background reports have been” (NatureScot).
  • “Firstly we would like to acknowledge the significant work that has gone into the draft derogation case, we have found the engagement on this useful and informative” (MS-LOT).
  • “We welcome SSE Renewables work on a derogation case. We also appreciate your significant work into potential compensation options, and the amount of supporting information you have shared with us throughout this process” (RSPB).
Table A27 :
Derogation Case Meetings

Table A27 Derogation Case Meetings

 

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[1] Council Directive 92/43/EEC.

[2] Council Directive 2009/147/EC.

[3] The process applies equally to a plan as to a project, but for simplicity we focus on its application to a project since this Report is concerned with a project rather than a plan.

[4] Regulation 28(1), (2) and (5) of The Conservation of Offshore Marine Habitats and Species Regulations 2017.

[5] Regulation 5 of The Conservation of Offshore Marine Habitats and Species Regulations 2017.

[6] Regulation 28(3) of The Conservation of Offshore Marine Habitats and Species Regulations 2017.

[7] Regulation 29 of The Conservation of Offshore Marine Habitats and Species Regulations 2017.

[8] Regulation 36 of The Conservation of Offshore Marine Habitats and Species Regulations 2017.

[9] See the Conservation of Offshore Marine Habitats and Species Regulations 2017. There are other provisions not set out which only apply where the relevant Competent Authority is not the Scottish Ministers.

[10] The mortalities for kittiwake represent a combined impact value for collision and displacement. The mortalities for all other species are a result of displacement only.

[11] The DTA guidance mostly refers to regulations 49 and 55 of the Conservation (Natural Habitats, &c.) Regulations 1994, but these essentially mirror regulations 29 and 36 of the Conservation of Offshore Marine Habitats and Species Regulations 2017 referred to in this Report.

[12] An EC opinion is required unless the IROPI relate to human health or public safety or to beneficial consequences of primary importance for the environment.

[13] Management of Natura 2000 sites: Guidance - Environment - European Commission (europa.eu)

[14] Conservation of Offshore Marine Habitats and Species Regulations 2017 and the Conservation of Habitats and Species Regulations 2017.

[15] https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement

[16] Glasgow Climate Pact | UNFCCC

[17]  Decision -/CP.27, November 2022, Second periodic review of the long-term global goal under the Convention and of overall progress towards achieving it.

[18] Decisions taken at the Sharm El-Sheikh Climate Change Conference - Advance unedited versions | UNFCCC.

[19] Climate Plans Remain Insufficient: More Ambitious Action Needed Now | UNFCCC.

[20] Decision -/CP.27, November 2022.

[21] National Grid Future Energy Scenarios, 2021 et al

[22] Temperatures | Climate Action Tracker

[23] National Grid ESO Future Energy Scenarios series, 2012-2022.

[24] UK Government’s Energy White Paper, 2020.

[25] Scottish Government, November 2022.

[26] Scottish Government, October 2020.

[27] Scottish Government, 2021.

[28] Scottish Government, October 2020

[29] DECC, 2011 and BEIS 2021.

[30] National Grid, 2021.

[31] National Grid ESO Future Energy Scenarios series, 2013-2021.

[32] CCC, 2021

[33] BEIS, Digest of UK Energy Statistics, DUKES 2021.

[34] BEIS, Digest of UK Energy Statistics, DUKES 2021.

[35] HM Government. Energy White Paper: Powering our Net Zero Future. 2020.

[36] National Grid plc. Grid Code, National Grid Electricity Transmission plc. National Grid plc, Warwick [online], 2014.

[37] Scottish Government, September 2021.

[38] Scottish Government, October 2020.

[39] Scottish Government, 2017

[40] HM Government 2021

[41] IEA. Reaching international energy goals. IEA News, 2020.

[42] DNV GL. Energy Transition Outlook Power Supply & Use. 2020.

[43] Marine Scotland (DTA, 2021: in draft), Defra 2012 and MN 2000 and EC Interpretive Guidance.

[44] Spurrier, R (On the Application of) v The Secretary of State for Transport [2019] EWHC 1070 (Admin).

[45] Spurrier, at paragraph 334.

[46] 2020] EWCA Civ 214 at para 116

[47] At paragraph 10.

[48] Marine Scotland (DTA, 2021: in draft), Defra 2012 and MN 2000 and EC Interpretive Guidance.

[49] MN 2000, section 3.3.1 at page 68.

[50] Humber Sea Terminal Ltd v Secretary of State for Transport and another [2005] EWHC 1289 (Admin), comments at paragraph 84.

[51] See for example paragraph 17.25 of the SofS’s decision letter for East Anglia ONE North Limited, dated 31 March 2022.

[52] See Attorney General’s opinion C-209/04 (Lauteracher Ried) where it is noted that the examination of alternatives does not require "every theoretically imaginable alternative" to be considered.

[53] In Case C-239/04 (paragraph 44), the ECJ stated: “the choice does not inevitably have to be determined by which alternative least adversely affects the site concerned. Instead, the choice requires a balance to be struck between the adverse effect on the integrity of the SPA and the relevant reasons of overriding public interest”. In similar vein, EC Opinion C(2018) 466, 2018 notes “None of the alternatives would give rise to a significantly lower impact”.

[54] Scottish House Condition Survey: 2019 Key Findings (www.gov.scot). The latest available figures are from 2019 and were published by the Scottish Government in December 2020. Fuel poverty is defined by the Scottish Government as any household spending more than 10% of their income on energy - after housing costs have been deducted.

[55] Except for the final 0.1GW of Moray West and a potential 0.8GW of capacity from ScotWind N1 winner Offshore Wind Power Ltd.

[56] Offshore wind farms in Scotland against their years of connection based on Transmission Entry Capacity Register, National Grid ESO, March 2022.

[57] Transmission Entry Capacity Register, National Grid ESO.

[58] See section 9.1.3.2, on p84.

[59] See section 9.1.3.3 at p84.

[60] Hypothetical options can be discounted per Attorney General’s opinion C-209/04 (Lauteracher Ried).

[61] It can be noted in this context that Round 4 and ScotWind leasing stages were both subject to delays and took longer than expected.

[62] It is acknowledged that there is 7.6GW of Round 3 projects in construction (Dogger Bank (3.6GW), Hornsea 2 (1.4GW), Sofia (1.4GW) and Seagreen Phase 1 (1.1GW) and a further ~15GW consented but not yet in construction. Nevertheless, it is notable that it has taken over 10 years to consent and build only ~2.5GW from the target capacity of 30GW.

[63] TCE’s latest public announcement in October 2022 indicates Celtic Sea round is intended to provide 4GW by 2035. Although the wider region is assessed to have the potential to for up to an additional 20GW by 2045, that is not part of the current Celtic Sea opportunity.

[64] In this context it can be noted that the extension at Race Bank was dropped from TCE Extensions round, a demonstration of why registers generally could be overly optimistic as forecasts of future capacity.

[65] This analysis covers projects which have either delivered, or been abandoned, across a total estimate of 22GW of potential capacity across Allocation Rounds 1, 2, 3, Scottish Territorial Waters and Round 1&2 Extension round of which has been delivered.

[66] Offshore Wind Leasing Round 4 - Tender process outcome (thecrownestate.co.uk).

[67] TCE update, October 2022. 2022 - The Crown Estate updates developers on latest steps in the leasing process for floating wind in the Celtic Sea | 2022 - The Crown Estate updates developers on latest steps in the leasing process for floating wind in the Celtic Sea

[68] INTOG - Our projects - Crown Estate Scotland

[69] CES INTOG Offer Leasing Document, August 2022. intog-offer-document (crownestatescotland.com)

[70] Others may have similar connection dates which have not yet made it to the TEC Register.

[71] Analysis in the Applicant’s Statement of Need indicates an attrition rate for UK OWF projects in the past has been around 30%.

[72] Experience onshore shows only 55% of onshore windfarms have been repowered in Scotland and similar proportion across the UK (Renewable UK 2019).

[73] Headroom is the difference between predicted levels of mortality based on worst case parameters used at the application stage and mortality rates based on ‘as built’ project designs (built v assessed or consented wind farm designs) (Trinder, 2017).

[74] The boundary change increased the minimum gap between the Proposed Development and Inch Cape from 2.4 nm to 4.2 nm at the closet point, and a straightening (in a north to south direction) of the corridor, thus benefiting vessels navigating in the area. A failure to demonstrate navigational risk is ALARP is an issue that could determine whether consent(s) are granted and therefore goes to legal and technical feasibility of an alternative.

[75] Johnston et al., 2014

[76] Johnston et al., 2014

[77] Apart from 0.8GW from a recent ScotWind lease winner, currently hoped to commission in 2029. 

[78] The boundary change increased the minimum gap between the Proposed Development and Inch Cape from 2.4 nm to 4.2 nm at the closet point, benefiting vessels navigating in the area. A failure to demonstrate navigational risk is ALARP, which goes to legal and technical feasibility of an alternative.

 

[79] Regulation 29(1), the Conservation of Offshore Marine Habitats and Species Regulations 2017.

[80] See MN 2000 (2018) at section 5.3.2

[81] Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, paragraph 121.

[82] Commission v Portugal, C-239-04, at paragraph 45.

[83] Draft Regulation available at: st15176-en22.pdf (europa.eu). The legal basis for this new piece of legislation is Article 122 of the Treaty on the Functioning of the European Union, which provides for accelerated legislative procedures in cases of severe supply difficulties for Member States.

[84] See for example paragraphs 6.34 – 6.42 of the SofS’s decision letter for Hornsea Three.

[85] Judgement of 29.7.2019 – Case C-411/17 Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen.

[86] C-411/17 at paragraphs 157 and 159.

[87] Published on 9th August 2021

[88] Published on 28th February 2022

[89] Published on 04 April 2022.

[90] Judgement of 29.7.2019 – Case C-411/17 Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen.

[91] See Recital seven. st15176-en22.pdf (europa.eu).

[92] Apart from 0.8GW from a recent ScotWind lease winner, currently hoped to commission in 2029. 

[93] Judgement of 29.7.2019 – Case C-411/17 Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen.